Black v Danka Datakey Pty Ltd
[1997] IRCA 53
•04 March 1997
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2588 of 1996
B E T W E E N :
MARK BLACK
Applicant
A N D
DANKA DATAKEY PTY LTD
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 4 March 1997
CORRIGENDUM
The following amendment is made to the Judicial Registrar’s judgment of 4 March 1997:
At page 15, last paragraph, delete the word “months” on the first line and replace it with “weeks”.
Associate: ........ ........ ........ ........ .......
Date: 13 May 1997
DECISION NO:53/97
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - REMEDY - whether reinstatement impracticable as at date of hearing - ONUS OF PROOF - who carries the legal and evidentiary burden of proving impracticability - COMPENSATION - duty to mitigate - whether employee acted reasonably in refusing offers of reinstatement after he commenced alternative employment
Workplace Relations Act 1996 ss 170DC, 170DE(1), 170DF(1)(f), 170EE(1), 170EE(2), 170EE(3)
Sinclair v Anthony Smith & Associates Pty Ltd (unreported, IRCA, von Doussa J, 1 December 1995)
Golja v Lord (unreported, IRCA, Madgwick J, 20 June 1996)
Marke v G.K. O’Connor Pty Ltd (unreported, IRCA, Staindl JR, 18 January 1995)
Bechara v Gregory Harrison Healey & Co (1996) 65 IR 382
Banco de Portugal v Waterlow [1932] A.C. 452
Perkins v Grace Worldwide (Aust) Pty Ltd (unreported, IRCA, Full Court, 7 February 1997)
MARK BLACK - v - DANKA DATAKEY PTY LTD
No. VI 2588 of 1996
Before: Judicial Registrar Millane
Place: Melbourne
Date: 4 March 1997
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2588 of 1996
B E T W E E N :
MARK BLACK
Applicant
A N D
DANKA DATAKEY PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 4 March 1997
THE COURT ORDERS BY CONSENT THAT:
The respondent’s name be amended to read “Danka Datakey Pty Ltd A.C.N. 004 749 222”.
AND THE COURT DECLARES THAT:
On 23 August 1996 the respondent terminated the applicant’s employment in contravention of the Workplace Relations Act 1996.
AND THE COURT FURTHER ORDERS THAT within 21 days of the date of making these orders:
The respondent pay to the applicant the sum of $24,017.68 less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2588 of 1996
B E T W E E N :
MARK BLACK
Applicant
A N D
DANKA DATAKEY PTY LTD
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 4 March 1997
REASONS FOR JUDGMENT
In this case the applicant seeks compensation alleging that on 23 August 1996 the respondent terminated his employment in contravention of sections 170DE(1), 170DF(1)(f) and 170DC of the Workplace Relations Act 1996 (the Act).
With regard to the contravention of section 170DF(1)(f), the applicant claims that one of the reasons advanced when terminating his employment as a sales executive was his age. The applicant was born on 16 July 1957. His uncontested evidence is that the day before his employment was terminated the sales manager informed him that the respondent had a policy of not employing sales staff over the age of thirty-five years. Exhibit A12 is an internal memorandum dated 8 August 1996 which confirms that as at August 1996 the policy of the company was to not employ staff over thirty-five years of age.
The respondent called no evidence in relation to any of the alleged breaches. This being so, it has not discharged the burden of proof it carries in relation to sections 170DE(1) and 170DF(1)(f) and there is no necessity for the Court to address any question of procedural fairness for the purposes of determining whether there was a contravention of section 170DC of the Act. Accordingly, I find that the termination of the applicant’s employment on 23 August 1996 contravened sections 170DE(1) and 170DF(1)(f) of the Act.
The only evidence called by the respondent related to the question of whether the Court should make an order in favour of the applicant for the payment of compensation. The parties agreed to the tendering in evidence of an affidavit of David William McLaughlin, solicitor, sworn on 25 February 1997 together with three exhibits, “DML1”, “DML2” and “DML3”. This affidavit and the accompanying exhibits comprise the respondent’s evidence directed solely to an unconditional offer to reinstate the applicant to his former position on the same terms and conditions as those previously enjoyed by him. The offer to reinstate him was made on at least two occasions in September 1996 following termination and was rejected. Relying on these offers the respondent argued at hearing that in September 1996 when it made the offers of reinstatement, reinstatement was practicable. Accordingly it says that the applicant’s refusal to accept the offers of reinstatement amounts to a failure to mitigate any loss he suffered by reason of the unlawful termination. This being so, the respondent argues that no compensation should be awarded to the applicant.
Section 170EE of the Act makes provision for the remedies the Court may grant in respect to a contravention of, amongst other things, sections 170DE(1) and 170DF(1)(f) of the Act. Sections 170EE(1), (2) and (3) relevantly provide:
“170EE (1) In respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by the termination of employment of an employee, the Court may, if the Court considers it appropriate in all the circumstances of the case, make the following orders:
(a)an order requiring the employer to reinstate the employee by:
(i)reappointing the employee to the position in which the employee was employed immediately before the termination; or
(ii)appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination; and
(b)if the Court makes an order under paragraph (a):
(i)any order that it things necessary to maintain the continuity of the employee’s employment; and
(ii)an order requiring the employer to pay to the employee the remuneration lost by the employee because of the termination.
(2) If the Court thinks, in respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by the termination of employment of an employee, that the reinstatement of the employee is impracticable, the Court may, if the Court considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate.
(3) In working out the amount of the compensation for the purposes of subsection (2), the Court is to have regard to the remuneration that the employee would have received, or would have been likely to have received, if the employer had not terminated the employment, but the amount of compensation:
(a) must not exceed, in respect of any employee, the amount of the remuneration that would have been received by the employee in respect of the period of 6 months that immediately followed the day on which the termination took effect if the employer had not terminated the employment and the employee had continued to receive remuneration in respect of the employment at the rate at which he or she received remuneration immediately before the termination took effect; and
(b) must not exceed, in respect of an employee who is not employed under award conditions, the applicable amount on the day on which the termination took effect.”
As is apparent from the abovementioned provisions, where there is a finding adverse to the respondent the principal remedy the Court may grant is reinstatement, if the Court considers it appropriate in all the circumstances of the case. I interpret this to mean the circumstances touching upon both the respondent and the applicant as at the date of hearing.
An order for compensation, on the other hand, may be made but this is subject to the Court first reaching a positive conclusion that reinstatement is impracticable and, secondly, deciding that a payment of compensation is appropriate in all the circumstances of the case. Obviously there may be some overlap between any evidence demonstrating the impracticability of reinstatement and evidence of circumstances that may persuade the Court to make an order for the payment of compensation.
More often than not it is the respondent who carries the burden of showing on the balance of probabilities that reinstatement is impracticable because the employer seeks to demonstrate that the reinstatement of the employee would impose unacceptable and unreasonable burdens in the operation of its business. On the question of who carries the onus of proof, His Honour Justice von Doussa made the following pertinent observations in his decision in Sinclair v Anthony Smith & Associates Pty Ltd (unreported, IRCA, von Doussa J, 1 December 1995)
“The respondent argues that the onus of establishing that the reinstatement is not impracticable rests upon the applicant. The Act itself is silent on that particular aspect of onus. The general rule is that a person seeking to establish a cause of action and a remedy before a court or tribunal carries the onus of establishing the facts necessary to justify the granting of the remedy. However, the Act is dealing with a very practical situation and a very practical approach has to be taken to the question of proof of relevant facts. The reality is that whether a job can be refashioned, and if so what implications that would have or might have in the employment place, are matters almost entirely within the province of the employer. In a realistic sense, in my view, the evidentiary burden of proof of impracticability rests upon the employer.
In the present case, insofar as a legal onus may have rested upon the applicant, the applicant has led evidence of the size and nature of the business of the respondent, and of the fact that the business is still in operation. It is difficult to think that the applicant could have led any more useful evidence on the topic of reinstatement. On the other hand, the employer, it may be assumed, knows precisely the operational requirements of its business and the difficulties or otherwise of fashioning a position that would accommodate the applicant if reinstated under an order requiring the provision of a position on terms and conditions no less favourable than the former position.”
Experience in this Court shows that there are many cases where employees apply to the Court for a remedy and seek only compensation because they have found alternative employment or because there are other personal, physical or geographical barriers to them returning to employment with the employer whose unlawful conduct brought about the termination of the employment. Where as at the date of the hearing the reinstatement of an employee may be practicable from the employer’s subjective point of view, it is open to the employee to call evidence not only to rebut that assertion but to establish both the impracticability of reinstatement and circumstances which militate against reinstatement. In my view where the Court considers that reinstatement is appropriate in all the circumstances of the case, the party asserting impracticability as an impediment to reinstatement carries the evidentiary burden of proving this matter.
The respondent called no evidence relevant to the Court determining as at the date of hearing whether it was then appropriate in all the circumstances of the case to reinstate the applicant. Its evidence, such as it was, was confined to establishing circumstances existing between 4 and 25 September 1996 during which period it says it provided the opportunity to the applicant to be restored to his former position without any loss of conditions or remuneration. Accordingly, what evidence it did give did not address the practicability of reinstatement as at the date of hearing but was confined to the issue of whether first there was any duty to mitigate and if there was, whether the applicant had acted reasonably in refusing the offer made in the period up to 25 September 1996.
THE WITNESSES
The applicant gave evidence and called one other witness, Alfred James Stoner (Stoner), the respondent’s Victorian state manager at the relevant time.
BACKGROUND
Stoner was one of the three founding members of Datakey in 1975. He was the managing director of the company until 1985 when it was sold to Alcatel and remained employed with the company as its Victorian state manager until September 1996 when he was demoted to the position of copy salesman. He left that position in January 1997.
The applicant commenced his employment with the respondent in 1991 as a sales person for a period of two years. He left and returned to his position as a sales person on 11 April 1994. His job entailed the sale of a range of photocopier and facsimile products distributed by the respondent. In particular, he sold Sharp photocopiers and facsimile machines. In the sales department, comprising some nine to ten sales people in 1994, the applicant operated in a geographical area selling the respondent’s products to the public as well as arranging sales to government and educational institutions. From April/May 1996 at the request of the respondent he commenced selling copiers in key account areas, targeting groups such as engineers and advertising agencies. This meant that his sales were more focussed on larger equipment sales.
I am satisfied on the evidence of Stoner and the applicant that in sales he was a high achiever and well regarded by Stoner who described him as an excellent salesman. I am further satisfied that there were no relevant complaints about his performance or conduct up until the receipt of the letter of termination dated 28 August 1996 approximately one week after he was terminated and provided with oral reasons for termination, which in no way alerted him to any possible complaint about his performance or conduct.
The applicant’s uncontested evidence is that he was engaged on the basis that he received a base salary of $27,000 together with commission and an annual car allowance of $9,269.00. For the financial year ending 30 June 1996 he earned $58,372.00 in salary and commission and was paid the car allowance. In addition to these amounts the applicant participated in an incentive scheme operated by his employer in conjunction with the manufacturer, Sharp. This was known as the High Fliers Program. The program was available to the sales people employed both by the respondent and other distributors who sold Sharp equipment and registered as participants in the program.
The evidence given indicates that the High Fliers Program was contributed to by the respondent in different ways at different times, however, it is not clear what, if any, fund involvement the respondent had during the program period from 1 January 1995 to 30 September 1996. The applicant was registered as a participant for this program and remained a participant in the program until his employment was terminated. Notwithstanding the lack of evidence to indicate whether the respondent paid any amount of money towards the program, on the evidence I am satisfied that the opportunity to participate in the program was part of an incentive bonus scheme made available by the respondent to its sales people Australia wide. It was offered on the basis that the employees were encouraged to sell Sharp equipment and, if necessary, reduce the price of the equipment thereby reducing their commission, all with the aim of gaining a sale and attracting points in the High Flier Program. Each participant had an individual target determined by Sharp and the sale of its products gained points towards this target. Achievement of the individual target meant that the employee received a ticket to Italy and had the opportunity to earn an extra ticket upon reaching an additional fifty per cent of the target points.
By 24 June 1996 the applicant, along with two New South Wales employees, had reached his individual target and earned the first ticket to Italy as well as the right to go on the tour organised during October 1996. The value of the ticket to the applicant was, at the relevant time, $8,000.00. At the date of termination he was well on his way to earning the second ticket within the time frame provided for in the program. However, one of the conditions applying to the eligibility of sales people to take up their prize and to accumulate points towards the prize was that if during the period of the program a participant changed his or her place of employment, the points received “... up to the date of discontinuation will be invalidated”. The effect of the termination was that the applicant lost the ticket gained as well as the opportunity to qualify for the second ticket.
For the purpose of this proceeding I am satisfied that the loss of the value of the first ticket and the loss of the opportunity to qualify for the second ticket, are losses of financial benefits directly attributable to the unlawful termination and are compensable losses when calculating any compensation payable (see the decision of His Honour Justice Madgwick in Golja v Lord (unreported, IRCA, Madgwick J, 20 June 1996)).
It was the applicant’s uncontested evidence that on the day preceding the termination of his employment Ian Mundy (Mundy), who was his immediate superior reporting to Stoner, apart from informing the applicant that the company did not want sales staff over the age of thirty-five years, advised the applicant to attend a meeting with Mike Whelan (Whelan), the following day. The applicant attended the meeting on 23 August 1996 with Whelan and Mundy. On that date, the conversation between the participants in that meeting was recorded by the applicant. The transcript of that meeting was tendered in evidence. In summary the applicant was told that he no longer fitted the employee profile the company was seeking to establish and his employment was terminated. There was no discussion of any poor performance or conduct related issues.
Stoner’s evidence was that on 20 August 1996 he met with John Parsons (Parsons), the managing director, Whelan, the regional manager for Victoria, South Australia and Western Australia, Mundy and Mike Strong, a representative from the United Kingdom.
It was Stoner’s expectation at that meeting that there would be a discussion of a plan of action he had prepared for the meeting to build the company’s sales. Instead, Parsons wrote the names of employees, including the applicant’s name, on a whiteboard and discussion ensued about their suitability. Stoner was instructed by Parsons to “sack” two employees who were not nominated at that time. He refused to do this expressing the view that all the employees were good employees, forming the nucleus of a team of sales persons upon which the respondent should build. He was accused of taking the soft option and asked to leave the meeting. When he was invited to return to the meeting shortly thereafter, only Strong and Parsons were present. He was then told that they could make him redundant, however, because of his loyalty to the company he was to be given the opportunity to “go on the road” as a copy salesman. He took the job offered and remained in it until 30 January 1997 when he left.
If nothing else, the circumstances described by Stoner confirm that there was no objective basis for termination relating to the applicant’s performance or conduct.
Following termination the applicant received both a letter of termination dated 28 August 1996 and an employment separation certificate dated 29 August 1996. The letter of termination signed by Mundy contains the following reasons for termination (Exhibit A9):
“We hereby confirm that your employment with Danka Datakey Pty. Ltd. has been terminated on the 23rd August 1996 due to poor sales performance and unacceptable behaviour.
As you are well aware, there were numerous reviews conducted regarding your poor sales performance. At those reviews warnings were issued to you that your sales must improve or we would be forced to take action.
Unfortunately, sales did not improve.
You were also warned on more than one occasion that your behaviour was unacceptable, unfortunately this also did not improve.
Taking both these facts into consideration, we were left with no alternative to the course of action already taken.
I trust this clarifies our situation.”
In the employment separation certificate the respondent has identified the reason for termination as “unsatisfactory work performance”.
I conclude from the contents of both of the abovementioned documents that the respondent has little or no regard for the truth and in August 1996 was prepared to fabricate reasons to justify what was essentially an unlawful termination.
By a letter dated 30 August 1996 the applicant’s solicitors wrote to the respondent noting, amongst other things, that the applicant denied the allegations made by the respondent concerning his conduct and performance. The letter from the applicant’s solicitors offered to resolve the applicant’s as yet unfiled claim for unlawful termination and his related claim for compensation for the loss of the trip to Italy by the payment of a sum of money. That offer was left open until 4.00pm on 5 September 1996.
On 4 September 1996 the respondent’s solicitors, Phillips Fox, sent the following facsimile and counter offer to the applicant’s solicitors (Exhibit R1):
“We refer to your letter of 30 August 1996 and advise that our client does not consider the options proposed in your letter as appropriate.
In all the circumstances our client believes the best way to resolve your client’s concerns is to reinstate Mr Black to his former position. Accordingly, the purpose of this letter is to offer Mr Black reinstatement to his previous position on exactly the same terms and conditions as he previously enjoyed. The reinstatement would take effect from 23 August 1996 as if the termination of employment had not occurred. All benefits accruing to Mr Black will be fully reinstated.
We look forward to receiving your response by 4.00pm on Thursday 5 September 1996. Please direct all communication to David McLaughlin at this office. He can be contacted on ... .”
Events overtook the parties because by 3 September 1996 the applicant commenced alternative employment as a sales executive with Toshiba selling its copier equipment. The base salary paid by Toshiba is $26,000 per annum together with commission and a car allowance of $9,360 per annum. It was the applicant’s evidence that he did not anticipate building his sales of Toshiba products up to the same level of earnings as that received from the respondent until twelve months from the date of the hearing. He gave no explanation to the Court for this estimate.
On the applicant’s instructions his solicitors on 4 September 1996 replied by facsimile to the respondent’s counter offer in the following way (Exhibit R1):
“We refer to the above matter and to your letter dated 4 September 1996.
We advise that our client is unable to accept Danka Datakey’s offer of re-employment, as he has found alternative employment.
He is prepared to settle this matter for $16 000.00 or two tickets to Italy as provided under the “High Fliers” scheme.
Please respond to this offer by 4.00 pm Friday 6 September. Julie Clayton can be contacted on ... .”
Not content with the refusal received the respondent’s solicitors reiterated the offer made on their client’s behalf in the following correspondence dated 20 September 1996 (Exhibit R1):
“We refer to our letter of 4 September 1996 and your reply of the same date, and the subsequent discussions between yourself and David McLaughlin.
Those subsequent discussions were without prejudice. Unfortunately they have not produced a resolution. Accordingly we consider it appropriate, before you initiate an application in the Industrial Relations Court, to advise that our offer of complete reinstatement remains open until 5:00pm on Wednesday 25 September 1996. The offer is unconditional except for offsetting any earnings your client has obtained between the time of termination of his employment and the date of reinstatement. Reinstatement is the only way the employee can be eligible to win the Sharp incentive trip to Italy.
If there is any change in your client’s position, please contact David McLaughlin on ...”.
The lastmentioned letter represented the end of the exchanges between the parties on the question of reinstatement.
DUTY TO MITIGATE
In his decision in Marke v G.K. O’Connor Pty Ltd (unreported, IRCA, Staindl JR, 18 January 1995), Judicial Registrar Staindl had occasion to consider the question of whether any common law duty to mitigate a party’s loss applies under the Act. In my view the Judicial Registrar quite correctly pointed to the possibility that because reinstatement is the primary remedy under the Act, different considerations could apply where an employee seeks reinstatement rather than compensation. Conceivably an employee may seek reinstatement as the primary remedy and not hunt for alternative employment on the basis that they hold themselves ready and able to return to the former position. In my view this may constitute a relevant consideration in determining the amount of remuneration lost once an order for reinstatement is made. On the other hand, where compensation is sought by an applicant as a remedy, the authorities in this Court indicate that there is a duty to mitigate the loss suffered. In his decision in Bechara v Gregory Harrison Healey & Co (1996) 65 IR 382, Justice Madgwick makes it clear that the common law duty to mitigate is relevant to determining whether a payment of compensation is appropriate. On appeal the Full Court upheld His Honour’s decision concentrating on whether there was a bona fide and meaningful offer of re-employment made by the respondent shortly after termination.
In Bechara’s case at first instance Justice Madgwick concluded from the facts before him that it was not impracticable for the applicant to have accepted the offer of reinstatement, which offer he found was made in good faith two days after the unlawful termination.
Bechara’s reason for refusing the offer appears to have been her decision to go out and to practice as a solicitor on her own account. In the circumstances of that case His Honour found that a refusal of reinstatement based on that decision was an unreasonable one.
The respondent carries the burden of showing that the applicant ought reasonably have accepted the offer of reinstatement. I must determine on an objective basis whether the applicant acted reasonably, in particular, in taking up and retaining alternative and less well paid employment. In performing this task I have borne in mind the words of Lord Macmillan in Banco de Portugal v Waterlow [1932] A.C. 452 where he says:
“Where the sufferer from a breach of contract finds himself in consequence of that breach placed in a position of embarrassment the measures which he may be driven to adopt in order to extricate himself ought not to be weighed in nice scales at the instance of the party whose breach of contract has occasioned the difficulty. It is often easy after an emergency has passed to criticise the steps which have been taken to meet it, but such criticism does not come well for those who have themselves created the emergency. The law is satisfied if the party placed in a difficult situation by reason of the breach of a duty owed to him has acted reasonably in the adoption of remedial measures and he will not be held disentitled to recover the cost of such measures merely because the party in breach can suggest that other measures less burdensome to him might have been taken.”
When the applicant sought and obtained alternative employment from 3 September 1996 it can hardly be said that he was acting unreasonably or that he failed to take measures to mitigate his loss. Indeed, prior to 4 September 1996 he may well have been criticised for not accepting a genuine offer of alternative employment even though the remuneration offered to him was offered at a reduced rate. The main question to be determined is whether having accepted and commenced alternative employment, it was unreasonable for the applicant to remain with the new employer when there was an unconditional offer of reinstatement available to him which would have provided him with a package equivalent to that received up to the date of termination and preserved his right to take his trip to Italy. In my view there are no grounds for saying that the applicant acted unreasonably. First I take the view that the commencement of alternative, full time and permanent employment can and does constitute a reason for the Court to conclude that reinstatement is impracticable when the employee elects to remain in the new job. To find otherwise would be inconsistent with the existence of any duty to mitigate. It would provide a disincentive for employees to seek alternative employment whilst awaiting the outcome of any application for compensation and, further, it would provide a bar to employers engaging employees who have claims awaiting hearing. It is entirely reasonable for employees who have been the subject of an unlawful termination to seek secure alternative employment and maintain their credibility and standing in the employment market place by remaining in that employment. The offset of the earnings earnt in the alternative employment during the period over which compensation is assessable protects the respondent from any double dipping and invariably reduces any award of compensation which might otherwise have been payable.
At hearing the applicant raised a further issue relating to his alleged loss of trust and confidence in his employer. The applicant relied on this as a circumstance militating against the practicability of reinstatement. The Full Court in its decision in Perkins v Grace Worldwide (Aust) Pty Ltd (unreported, IRCA, Full Court, 7 February 1997) noted that this is a relevant consideration provided that such loss of trust and confidence is soundly and rationally based.
In the case before me I have already observed that the respondent called no evidence on the practicability of reinstatement as at the date of hearing; nor did it give any evidence challenging the applicant’s assertion that its conduct had led to a rationally and soundly based loss of trust and confidence in it. In asserting a loss of confidence and trust in his former employer the applicant pointed to the circumstances of the termination and the letter of termination. Despite the denials contained in the applicant’s solicitor’s letter dated 30 August 1996, the false and spurious allegations made regarding the applicant’s performance were not the subject of any retraction or apology at any time since the making of those allegations in the respondent’s letter dated 28 August 1996 and the employment separation certificate dated 29 August 1996. In the circumstances of this case I accept that the level of trust and confidence necessary for a productive employment relationship did not exist at the date of hearing and this too made it impracticable to reinstate the applicant.
My finding is that at the date of hearing reinstatement was impracticable. Further, I find that in all the circumstances of the case an order for the payment of compensation is appropriate. In assessing compensation and considering any duty to mitigate the applicant’s loss, I find that the measures taken by the applicant following termination were reasonable and, in particular, that the applicant acted reasonably in declining the opportunity to be reinstated to his former position.
In calculating the sum of compensation payable, I rely on the authorities in this Court which indicate that the loss suffered is not confined to remuneration only (see Golja’s case) but may include losses such as the loss of a possible financial benefit.
For the twenty-six months subsequent to termination; that is to say, to Friday, 21 February 1997 the applicant has received the following sums by way of remuneration:
1. On 23 August 1996, two weeks pay in lieu of notice, which sum I have calculated by reference to the applicant’s base salary of $27,000. This amounts to $1,038 gross; and
2. $21,163.82 gross paid by his employer, Toshiba, to the pay period ending 28 February 1997 which represents a twenty-five week, three day working period from 3 September 1996. To 21 February 1997, doing the best I can with the very limited material before the Court, I have calculated the applicant’s average daily earnings from Toshiba at $165.34 per day plus his car allowance. This amounts to $20,336.82 plus the car allowance.
It is contended by the applicant that his package with the respondent which included the car allowance, had a value at the date of termination of $67,641 gross per annum. On this basis he alleges that the ceiling applicable to compensation payable is $33,820.50 being the value of a twenty-six week or six month period of work post termination. By way of comparison, in the period to 21 February 1997 the applicant received from the respondent $1,038 gross compensation in lieu of notice and $20,336.82 gross salary and commissions from Toshiba. He also received, calculated on a pro rata basis, $4,428.00 in car allowance payments. This brings his total receipts for the twenty-six week period to $25,802.82; leading to a shortfall of $8,017.68.
In assessing compensation I am not satisfied that I should assess the claimed shortfall over a twelve month period in the absence of any evidence providing a sound basis for nominating such a lengthy period. I take the view that a further three month period would provide appropriate compensation for the continuing shortfall. I have allowed $4,000 as compensation for this item. In addition to the shortfall it is appropriate to allow the loss of the ticket to Italy to the value of $8,000. Further, I am satisfied that the applicant lost the opportunity to obtain the second ticket to an equivalent value, however, I assess that loss, subject to the contingency of him not achieving the sales required in the time provided for under the program, at $4,000. Accordingly, the compensation I propose to order amounts to $24,017.68.
MINUTES OF ORDERS
THE COURT ORDERS BY CONSENT THAT:
The respondent’s name be amended to read “Danka Datakey Pty Ltd A.C.N. 004 749 222”.
AND THE COURT DECLARES THAT:
On 23 August 1996 the respondent terminated the applicant’s employment in contravention of the Workplace Relations Act 1996.
AND THE COURT FURTHER ORDERS THAT within 21 days of the date of making these orders:
The respondent pay to the applicant the sum of $24,017.68 less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding sixteen (16) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate:
Dated: 4 March 1997
Solicitors for the Applicant: Slater & Gordon
Counsel for the Applicant: Mr R. Niall
Solicitors for the Respondent: Phillips Fox
Appearing for the Respondent: Mr D. McLaughlin
Date of hearing: 26 February 1997
Date of judgment: 4 March 1997
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2588 of 1996
B E T W E E N :
MARK BLACK
Applicant
A N D
DANKA DATAKEY PTY LTD
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 4 March 1997
CORRIGENDUM
The following amendment is made to the Judicial Registrar’s judgment of 4 March 1997:
At page 15, last paragraph, delete the word “months” on the first line and replace it with “weeks”.
Associate: ........ ........ ........ ........ .......
Date: 13 May 1997
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